What happens practically?
As a simple guide this is what
will happen to you:
1.
Start out nice You will start
by thinking that you can go for an amicable break up. Some couples do. Onya. Cost can be $2,000 (maybe less) if this
works. Get signed parenting orders stamped at court so as to reduce any chance
your spouse will later change her mind, and move the kid’s interstate or
overseas should she get a job offer or find a new friend. (Changing locations is a complex, yucky, area
of law as well).
2.
Enter
the Orcs- A few middle class
cases settle amicably. But soon one of you will see a lawyer. The lawyer won’t
say it in so many words but the advice is to stay in the family house unless it’s
unbearable An awful, but common occurrence
is to live under the same roof, but it’s all about the settlement for your kids
and for you. Meaning :
·
If you lose
practical contact with your kids, the courts, when matters finally get sorted,
are reluctant to change the then status quo regarding parenting hours. Merit,
reason, rationale, the fact that they caused the delay, all lose out to preserving the status quo “in
the best interests of the children”. So if you move out of the house your long
term contact hours will almost inevitably be reduced. A sad but true consequence
of judicial dithering. Now if you move out
of the family home your ex-wife’s lawyer will find 101 excuses to make this as
long a period as they can- house isn’t ready for sale, you aren’t doing what
they say, kids are angry, no building certificate on file, the agent is an
idiot, the house needs a new sofa before it can be sold, new swimming pool
regulations, school holidays, medical matters, everything raised sequentially. But
that can be 6-23 months of hell for everyone
while the psycho-babblers-for-hire pretend that, gosh no, they don’t really
understand what “priming the children” actually means and any criticism of
their field must mean you are a closet scientologist; and
·
The section 75(2) test rightly takes into
account the making of financial compensation where one parent has primary care
for the kids. Good in theory but it leads to odd incentives and thus odd
outcomes. A lawyer can’t tell you this directly
because they are ethically obliged not to allow you to “trade property rights for
child welfare”. This is, of course, the right thing to do. But the entire
Family Court dispute resolution system then slithers slowly forward on the
basis that most men will ignore the elephant in the room and that it’s not a
“trade”, even though that’s precisely what the policy people have left on the
table. It also assumes that the ex-wife won’t game the system the other way, or
just act out of spite. Naïve indeed.
3.
Words with Fiends – Your
wife’s “new friends” at the “divorce support network” dinner will get her to see their favourite
“relationship “lawyer, who will advise her that divorce is complex (it can be
if the lawyer wants to push buttons) and that she has “one shot at securing her
and “her kids” future (buttons pushed). Emboldened
Super Mum is thus amenable to an adverse characterisation of you at this point-
of course- that’s why you separated. The idea that you will be amicable mainly dies
at this first visit to her lawyer. Largely because the system and the family
lawyer has an economic incentive to make money through finding difficult issues
and milking your wife’s expectations that this is her last shot at getting her “fair
share”. Cue the denials from the harpies
and the Law Society - but just look at the arithmetic, and the 2 year clog in
the courts. Anyway, her lawyer will , of course, not tell her any of the
following:
·
That Family Court judges are “overly female
friendly” when they exercise custody and S 75 (2) discretion. (They will caveat the downside but build
expectations). Not sexist; just meddling
caring.
·
That she will get a better deal by using a
lawyer than going on her own (i.e. insinuate her husband will out negotiate her
if left to her own devices) and thus the lawyer will collect from what the
husband would have taken anyway (i.e. the free rider approach).
·
That any alternative way to settle the dispute
makes no sense (Mediation ON CHILDREN is
compulsory, after all, see para D
below). If the lawyer said “settlement
is for suckers” and that “no one in the sister hood who is smart would mediate”,
then she would be in breach of the Law Society “Code of Essex”. Her lawyer may mention that the husbands’ lawyer can’t
ethically say trade kids for property and
be silent (and thus clients might draw the connection that they can; gosh).
·
That the lawyer will collect on a
deferred basis when your ex-wife gets cash flow “just to make billing easier”.
Very sympathetic- that is, @ an IRR that would make Gordon Gekko blush. (Note contingency fees, least in legal form,
are verboten, but “cash flow deals” for a huge back end fee are done very,
very, very frequently).
·
That dragging out a dispute means that hubby will
break and will become more amenable to just doing a deal. No, no - it’s all
about process, equity, granularity, etc.
·
That the lawyer has an uncanny ability to find
the emotionally down trodden, yet is doing this for a sum of money that financial
planners can only dream of
·
That schooling the kids to tell a story against
the father is acceptable. (But “seeking the child’s view” is what an enlightened
modern mother should do).
·
That it’s all about the wife. Rather it’s all about the kids- and it’s not about selfish behaviour. So if the
ex-wife is challenged then répétez après moi “I am doing this purely in the best
interests of the children” (well, as was tactically determined by my lawyer
just 11 minutes before the court appearance commenced).
Of course not. Never. Never. Of course not. Ethics rules work,
right, in constraining behaviour? And lawyers are caring. (If you don’t comprehend the ethics v
incentives debate just borrow a mate’s copy of the book Freakonomics or digest just about anything written by Nobel Prize
winner Gary Becker. Then ring NSW Law
Society and ask them how long they currently take to process ethics complaints:
just don’t mention you do so enjoy reading Richard Ackland’s delightful columns
as the phone line curiously goes quiet for some time).
4.
Ticketek
- The Family Law Act requires compulsory mediation, but only as regards
the children (except if there is violence, before anyone can get a ticket in
the Family Court queue about custody issues). Mediation is a very good idea in
theory, comparatively cheap, and difficult if one of the parties just doesn’t
want to do it. Mediation is to be encouraged, if it works, and that’s the rub- just
too often it doesn’t.
5.
Eyes
bigger than tummy- The idea of compulsory mediation was Parliaments way
of making the system more family friendly, cheaper, efficient, and solving the agency
problem associated with the perverse time based fee incentives given to family
lawyers. The problem is that in practice the Family Court mediation service is
woefully underfunded and there is a 3-6 month back log on getting to meet a “Family
Court qualified mediator” (yes, pre the litigation queue). This is where
reality leaves policy behind- a great idea that cannot possibly deliver with
current funding. Lawyers will deny that they pay lip service to supporting
mediation simply because it competes with the lawyers own economic interests.
But no matter how sympathetic they may say they are, you will be moved on.
6.
Desolation
of the Smug- With the Family Court mediation process being in a state
of utter disarray you will agree to go to a private mediator at $300 per hour. Maybe
this works, yet many just surrender when they get here. Some of the problems I
encountered were:
·
Private mediators are as time constrained as
their public sector compatriots.
·
The session can easily descend into a pre
litigation conciliation conducted by someone who isn’t a lawyer, rather than be
a structured mediation. So males find it daunting, and dig in. The female mediator
we used spoke repeatedly to me about males “generally being seen” as useless
parents if the matter got litigated; which was kind of the weirdest mediation
technique I have ever seen, when used to the exclusion of all other forms of
persuasion. Whatever that Greek word is for a female misogynist (misandrist?)
this was an offensive, ignorant, diatribe that just wasn’t relevant to our families
fact pattern.
·
The mediator forgot our kid’s names, called me
by someone else’s name, told me the Family Court judges were ogres, sent emails
to me at midnight on Saturday and had no agenda prepared when we turned up. She
suggested 2 nights contact was “fine given the academic literature” (not what
it says at all, but she couldn’t remember which study this was when challenged
) and encouraged me to “haggle about specific holiday contact”. The Life of
Brian is indeed one of my favourite movies but I was determined that that I
wouldn’t let my kids future be impacted by some carpet trader of this ilk. Frankly, going to a priest, or playing two up
with the local publican would have produced a more nuanced result.
·
Private mediation, if it works for you, all well
and good. But don’t expect too much effort from your mediator. It’s a chummy system, with many private
mediators having worked inside the court system and seen the way to exploit the
shemozzle; hence regulatory capture and no real oversight.
·
Property remains the elephant in the room. It’s
not the subject of mediation at all.
·
The private mediator’s referrals correlate with the
family lawyer network (I can’t say “is hopelessly co-dependent with” or they
would sue me). My private mediator rushed to issue a Section 601 certificate after
2 hours contact time thus allowing court action to proceed. (The mediator had
been suggested by my ex-wife’s lawyer). You need to get a “601 certificate” (that
you at least tried mediation) from the private mediator before either party can
enter court, but getting that certificate is about as difficult as obtaining a
gun permit in Alabama.
·
So you attend the mediation, the ex-wife stamps
her feet, the mediator throws her hands in the air, takes Visa but not Amex,
and issues the 601 certificate. Neither mediation in legal form, nor substance.
Next please.
·
The policy folks think mediation “works “ in that a lot of cases settle in mediation
which is the objective, and that the spouses
come away “equally unhappy”. A plaintive assertion of wistful hope over
analysis. “ We the shepple” settle because the whole process is costly,
directionless, and void of reason so we mostly give up. It also isn’t
comprehensive as it doesn’t address property issues.
·
Good luck if it works for your family. But the
widely held view, least that I encountered even from some lawyers, is that
private mediation is little more than a clip the ticket exercise, a formalistic
waste of time, a toll to be paid before meeting the judiciary in 18 months’
time.
7.
The Liverpool kiss – Oddly,
as we have no fault divorce, you can expect to receive an abusive letter from
the ex-spouses wife demanding you leave the house. Either tell them you are trying to sort it out and “please back off”.
Or respond in kind (“”Dear scum bag ambulance chaser likewise I am instructed
you have sex with Alsatian dogs and have regularly stolen money from your firms
trust account”, or some such). Apparently they teach people in law school that threatening
and abusive letters are the ideal way to resolve disputes and give effect to no
family law. Or maybe that was law school billing class ? Um, anyway you won’t
or you will move out. Lawyers say they are acting on instructions, but frankly
this just sets the tone for the scrap. Er no fault , low aggro, no fault ,
divorce.
8.
Ten Sheckles? Are you trying
to insult me? Me? With a poor dying grandmother...”? - You will move out of the house or be moved. In
the interim the lawyers will write each other pretentious “Dear Colleagues “letters. Two
weeks between sets of correspondence as the ex-wife uses a sole practitioner,
who has a back log so long they can’t attend mediation or deal with matters
inside 3 months. Most letters will not comprehensively
address the issues. More delay. Bogus arguments that her separate bank account
is not matrimonial property. It’s called “litigation tactics”; although if done
in business it would be called misleading and deceptive conduct in breach of S
52 of the Trade Practices Act. Her lawyer will agree to 3 out of 5 issues you
ask about and not even bother to address the other two that are part of the
compromise package. At $400 an hour you go around in circles. Lots of unfounded
allegations about behaviour that didn’t occur and which they don’t bother to verify.
The clock keeps ticking. They will
agree, retract, re send letters. Oblivious to the contempt in which lawyers
meddling and their time based charging model is so contrary to their clients’
interests. Three months pass by. You will propose a settlement , but she
doesn’t want you to buy her out of the family home because the kids are
attached to it and that may impact custody, whoops, she didn’t say that. Nothing
to do with the kids. Emails read on a blackberry by her lawyer with no
attention to what’s actually being proposed. Then your ex-wife will offer 2 out
of 14 nights with the kids, then 4, then retract and want one night. Maybe 3 hours starting after school with odd
intricacies around pick up times. No 2 nights. Embellished allegations galore will
vomit forth from her lawyers fax machine (I kid you not - the lawyers are surprisingly
technologically challenged) at 6pm
Friday night when you have no chance to reply,
which will immeasurably worsen the dialogue. Six months will fly by. Where
to put the house proceeds- is CBA the best or is a building society “just as
good” because it also reports to APRA ? Aaargh. Because of the delays, uncertainty of
outcome, and incompetence delays mount and mount and mount. While you are
trying to mediate her lawyer will be faxing you asking you to buy children’s
clothes. Trivialities galore at $ 450 an hour. Complete madness but it keeps
people employed. Your female lawyer
will possibly work part time and in any event is juggling 8 other family law cases,
over flow conveyances, and some employment law dispute that’s always urgent, so
things get missed and delayed. Four people talking rather than 2 who aren’t
talking. Then your ex-wife will have yet
another change of heart, and suggest you get 4 nights if she gets 60% of the
house proceeds as doesn’t feel like working and getting back to work will
impact the children so how about spousal maintenance in the amount of her
previous salary for a period of ….ten years as an adjustment … no it’s not an
ambit claim…………… All “in the best interest of the child” you see. At an hourly rate. Going nowhere fast and
making the Tiriel Mora character from The Castle movie
look like a McKinsey management consultant.
9. Who is
the Elle MacPherson of Family Law ? - You won’t know how to
choose a lawyer because unlike other areas of the law, there is no ratings
system and no beauty parade of family lawyers. You can self-represent but you
are at a huge tactical disadvantage , and unless you suffer from a cash flow
problem, and are good on your feet and tertiary qualified, we think its nutty. Not that the lawyers are great
muster, frankly. In reality your over whelmed suburban solicitor, Dennis
Denuto, will be mainly on the back foot reacting to events rather than driving
them So find someone who has a plan to drive, not react. Someone who will return your calls, and who has 5 happy clients you can chat to
in the last year, who are in your situation, and are happy with the results the
lawyer got. But the current system is about optimising the diaries of 5 people to
make decisions that should flow from the law. You can easily spend $ 50K in
Family Lore and just go nowhere. Lawyers know the terrain better than you but
most won’t do a fixed fee, all in, for they love charging by the hour. And if you
go to court get an A**hole. Family law is about litigation bitterness – a kumbaya
lawyer is just no good in the current system as it’s “no fault but hugely adversarial”;
mediation is a side show unless you have mediators on both sides. Email us at ozdivorce@gmail.com if you know people to
recommend.
The family law bar largely comprises (i) the kumbaya mediator types; (ii)
smart feminist do gooder types pushing everything to the max;
(iii) well meaning, but horribly lost, Church of Nicholson
ideologues (iv) the sharks (v) the
suburban lost souls. doing it as a side line to conveyancing (vii) the “black
letter” lawyers who study words not people and are straight. The trajectory of
law reform is to get rid of group (iv) and move to a more collaborative model
around group (i); but we are a long way
from that. Be well aware the all too many sharks that play “the family law game”, attracted by taking a slice of the
assets under the discretionary justice model or being paid to trade the kids
for fees. Everything goes- and I mean
throw away your John Grisham novels- they will destroy documents, procure false
evidence, ensure untoward financial pressure for settlements, and make
outrageous claims. The others suffer because of the courts inability to control
“aggressive client representation” give their buddies in the legal industry the
benefit of the doubt. Changing to fixed rules on property and kids would
decimate the shark pools and calm down the family law area quite a bit.
10.
A cup
of tea, a Bex and a good lie down- You will have to disclose to each
other your income and assets. Largely a pathetic exercise after a long marriage
but it allows recourse to scum bags that hide earnings or assets. Matrimonial
“property” means just about everything . That's every item of income and all
assets arising during the course of a marriage, realistically. Prior but
intermingled property. Property held via
companies, super funds, trusts sometimes established by others. Payments that are odd are also recaptured, (although
that doesn't include a recapture of excessive spend on your ex- wife’s shoe
collection or other extravagances- no one wants to rehash those details). Gifts
and inheritances are complex. Belongings and furniture are mostly sorted out by
agreement as mediators and Courts just can’t be bothered with trivia. You must
disclose separate and matrimonial property. For some complex issues involving
trusts, lack of control, and the like , the law is evolving as to what “property”
of the marriage is - so best to see a lawyer.
11.
Beds
are burning, yeah- The Good Wife will “de clutter the house for sale”
as recommended by the agent. This means throwing your clothes, art, sports
gear, and photos of grandad at Gallipoli into a pile in the garage but leaving
her dog-eared quilt collection from Nimbin adorning the walls. Tastefully removed by the agent. Storage
facilities organised. Depressing. Eventually the house will be sold, under pressure, and the money will sit in a
lawyers controlled monies account or be held jointly in a bank. Earning a poor
rate of return because no one knows how long it should be held for as the
dispute rolls along.
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